People v. Ingram

• Decision Date: 06 April 1978
• Docket Number: No. 76-376,76-376
• Citation: 582 P.2d 689,40 Colo.App. 518
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael INGRAM, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 689

582 P.2d 689

40 Colo.App. 518

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael INGRAM, Defendant-Appellant.

No. 76-376.

Colorado Court of Appeals, Div. I.

April 6, 1978.

Rehearing Denied May 18, 1978.

Certiorari Denied Aug. 14, 1978.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Deborah L. Bianco, Linda Palmieri Rigsby, Asst. Attys. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Carol L. Gerstl, Deputy State Public Defender, Denver, for defendant-appellant.

BERMAN, Judge.

Defendant, Michael Ingram, appeals from a denial of his motion pursuant to Crim.P 32(e) to withdraw pleas of guilty and from the sentence imposed on those pleas. We affirm the denial of defendant's motion to withdraw his pleas, but vacate defendant's sentence and remand for resentencing.

Defendant was charged with first degree burglary with intent to commit rape, felony menacing, and attempt to commit rape. On February 24, 1975, he withdrew his previous pleas of not guilty and entered pleas of guilty to the first degree burglary and attempted rape charges. The menacing charges were dismissed. Before accepting the guilty pleas, the trial court ascertained that the defendant understood: (1) That his plea of guilty to the first degree burglary charge could result in five to 40 years imprisonment, to be served either at the State Penitentiary or the State Reformatory; and (2) that his plea of guilty to the attempted rape charge could result in one to five years imprisonment and a fine of $1,000 to $15,000. The court subsequently ordered a psychiatric evaluation of defendant's suitability for commitment under the Sex Offenders Act.

Prior to sentencing, defendant moved to withdraw his guilty pleas on several grounds, including allegations that the trial court's advisement of potential penalties was defective. After a hearing, the court denied the motion. At the same hearing, defendant's attorney requested that the court sentence defendant to an indeterminate commitment to the State Hospital as a sex offender, for both offenses. The court, however, sentenced defendant to a term of not less than 30 nor more than 40 years in the Colorado State Penitentiary for the first degree burglary offense, and, as a sex offender, for a period of one day to life in the Colorado State Penitentiary for the attempted rape offense, the sentences to run concurrently.

I.

Preliminarily, we reject defendant's contention that the trial court's failure to advise him of possible sentencing under the Sex Offenders Act prior to accepting his pleas of guilty entitles him to withdraw the pleas.

Section 16-13-204, C.R.S.1973, does require that before accepting a plea of guilty from a defendant charged with a sex offense, "the court shall, in addition to any other requirement of law, advise the defendant that he may be committed to the custody of the department, including any penal institution under the jurisdiction of the department, as provided in 16-13-203." Section 16-13-203, C.R.S.1973, permits commitment of a sex offender for an indeterminate term of one day to life.

Nonetheless, the record now before us demonstrates that in the instant case defendant's counsel not only acquiesced to a preliminary psychiatric examination for sex offender evaluation and requested that the court sentence defendant as a sex offender, but at the sentencing hearing expressly acknowledged that that request was being made despite the trial court's failure to advise defendant, prior to accepting his guilty pleas, of the possibility of the sex offender commitment. Moreover, defendant's counsel insisted:

"I have explained to him that this does mean in effect an indeterminate commitment to the hospital, which may be for the rest of his life. So, he is aware of that, and he is aware that the one charge that is covered under the Sex Offender's Act only carries a five-year maximum sentence. He is aware of that."

We conclude that, in such circumstances, defendant effectively waived his right to advisement of the possibility of sex offender commitment, as assured by § 16-13-204, C.R.S.1973, and his pleas of guilty are therefore not subject to challenge. See Stilley v. People, 160 Colo. 329, 417 P.2d 494 (1966) (motion to withdraw pleas of guilty denied because any failure to advise of sentencing alternatives was suggested or invited by defendants).

II.

Defendant argues, however, that even if his pleas of guilty are binding, sentencing him to a term of imprisonment for the burglary offense concurrently with an indeterminate commitment as a sex offender violates the mandate of People v. Sanchez, 184 Colo. 379, 520 P.2d 751 (1974). In the circumstances present here, we agree.

Section 16-13-203, C.R.S.1973, empowers trial courts of this state to order the indeterminate commitment of a sex offender "in lieu of the sentence otherwise provided by law." In People v. Sanchez, supra, the Colorado Supreme Court held that such language, read together with other provisions of the Sex Offenders Act, precludes imposing on a defendant found to constitute a threat of bodily harm to the public, a sentence of commitment And a sentence of imprisonment. Accordingly, the court found error in the trial court's sentencing a defendant convicted of sodomy and additionally determined to be an habitual criminal to a term of commitment and imprisonment.

The People argue, however, that Sanchez does not govern our disposition here, since the concurrent term imposed there was for a single underlying...